Jury Allowed to Determine Whether Deleted Email Existed

A district court did not abuse its discretion in admitting testimony regarding the existence of an email that was missing because it would be possible for a jury to determine whether it existed

United States v. Wilde, 2017 BL 3483, 9th Cir. App., No. 15-10302, 1/9/17.

The Ninth Circuit held that a district court did not abuse its discretion in allowing evidence regarding the existence of an email that implicated the state of mind of the defendant in a murder case. The circuit court found that the trial court “exercised its gate-keeping function under Rule 104(b) and determined a reasonable jury could conclude that the disputed email existed.” Additionally, the Ninth Circuit found that the trial court did not commit plain error by not instructing the jury that it should determine whether the email existed before weighing the contents of the missing email. The court stated, “[B]ecause the testimony made clear that there was no record that the contested email was sent or received and its existence was hotly contested, no rational juror would rely on its alleged contents if he or she did not first conclude that it had in fact existed; any instruction to that effect thus could not have made a difference.”

Ex-Governor Cannot Hide Emails Shared with State Lawyers in Corruption Investigation

The former Oregon governor cannot prevent emails shared with state lawyers from being introduced to a grand jury because of attorney-client privilege

United States v. Kitzhaber, 2016 BL 224564, 9th Cir., No. 15-35434, 7/13/16.

   The Ninth Circuit found that emails sent by a former governor to the state’s attorneys are not completely shielded by the attorney-client privilege in a grand jury investigation. The former governor used several personal email accounts to communicate with state attorneys regarding ethics violations, but, unbeknownst to him, were archived on state servers.

   The court rejected the ex-governor’s argument that he had an attorney-client privilege while sending those emails. While emails exchanged with privately held attorneys were protected, any email sent to the state attorneys were not because “[w]hatever privilege such communications may implicate is held by the State of Oregon, not [the governor] personally.” In addition, the court held that communication with a state’s attorney over “a consultation concerning conflict-of-interest or ethics laws is a consultation about an office holder's official actions and obligations. [A]n executive officer who consults with a government attorney concerning whether to let a certain contract go to a person with whom he has business dealings, or to a relative, is seeking advice about carrying out his official duties.”

http://www.bloomberglaw.com/public/document/United_States_v_Kitzhaber_No_1535434_2016_BL_224564_9th_Cir_July_.

Speech-or-Debate Clause Does Not Block E-Mail Search

The speech-or-debate clause of the U.S. Constitution does not prohibit federal prosecutors from executing a search warrant for e-mails in Rep. Chaka Fattah's (D-Pa.)  Gmail account.

 

In re Fattah, 3d Cir., 2015 BL 284077, No. 14-3752, 9/2/15

    Fattah has been indicted for his alleged involvement in "several schemes" related to the misappropriation of hundreds of thousands of dollars. Fattah has been fighting an e-mail search warrant for over a year.

    A three-judge panel for the Third Circuit said that Fattah  cannot prevent Google Inc. from turning over his e-mails in response to the warrant. The opinion indicated that the court lacked jurisdiction to consider whether the speech-or-debate clause applies to search warrants.

    Judge Thomas Ambro partially dissented with the majority. He disagreed on the issue of jurisdiction but agreed that the Congressman's e-mails were not protected from a search warrant.

    The appeals court said that the speech-or-debate clause can be used to prevent the introduction of evidence at trial, but not to hinder an investigation by blocking a search warrant.

    "It cannot be... that the privilege prohibits disclosure of evidentiary records to the Government during the course of an investigation," the court said. "If it were any other way, investigations into corrupt Members [of Congress] could be easily avoided by mere assertion of this privilege."

    The court and Fattah did agree that the government needs to have better screening processes for reviewing these types of e-mails. The case was remanded to federal district court to sort out search process details.

http://www2.bloomberglaw.com/public/desktop/document/In_re_Fattah_No_143752_2015_BL_284077_3d_Cir_Sept_02_2015_Court_O